Constitutional Hill

Evictions: 0 out of 10 SANRAL – try again

Hundreds of people were left homeless at Nomzamo settlement in Strand on Tuesday after the South African National Road Agency Limited (SANRAL) initiated the demolition and destruction of their homes from land owned by SANRAL. However, it is far from clear that the forced eviction and demolition was lawful, despite the claim by SANRAL that it was authorised by an interim interdict, obtained on 24 January this year.

“The law is the law,” said Vusi Mona, spokesperson for SANRAL, on Tuesday when he attempted to justify the eviction of hundreds of people from their homes built on SANRAL land. Mona was invoking an interim interdict aimed at unspecified persons intending to occupy SANRAL land to justify the eviction.

The interdict purports to prohibit unspecified persons from unlawfully occupying the land, building structures on the land and inhabiting those structures. It also authorises SANRAL, duly assisted by the SAPS, to remove people from the land, demolish their homes and remove their belongings from the land.

However, the interdict clearly excludes from its ambit those who had already occupied land and were already living in structures on the land at the time that the interdict was granted.

This means that any action taken by the SAPS – on the instructions of SANRAL – against those who were already occupying the land on 24 January would be blatantly illegal.

This does not mean that the eviction of people who occupied the land after 24 January and the demolition of their homes were constitutionally valid.

A court clearly has the power to grant an interdict to prevent people from unlawfully occupying land and building informal structures on that land to house them.

But once they occupy the land and build homes on it, only a court can order an eviction and then only after considering all the relevant circumstances as set out in the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act (PIE).

What the court cannot do, is prospectively order the eviction of unspecified people from their homes and the demolition of those homes by granting an interdict to that effect, as this would be in direct conflict with the Constitution.

The Constitutional Court is currently considering this issue (in the case of Zulu and Others v Ethekweni Muncipality and Others) but in doing so they must be guided by section 26(3) of the Constitution which states that:

No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

In the Zulu case the Ethekweni Municipality conceded before the Constitutional Court that an interdict that actually authorised eviction and demolition would be unconstitutional. However, it argued, quite unconvincingly in my opinion, that an interdict allowing the SAPS to remove existing occupiers from land and demolishing their homes did not in fact constitute an eviction.

Where the court grants an interdict that operates prospectively and allows authorities to prevent occupation of land as well as the eviction of those who have settled on the land and the demolition of their homes, they abdicate their responsibility granted to them by section 26(3) to either private bodies or to organs of state like SANRAL or the Police.

In such a case there would be no judicial oversight over the possible eviction of people who would often be desperate because they would be occupying land illegally because they literally have nowhere else to go.

Neither would there be any consideration of all the relevant circumstances relating the manner in which the land was occupied and the desperation of the occupiers as required by section 26(3) and further elaborated upon in PIE.

As the eviction and demolition of homes at Nomzamo settlement in Strand thisweek demonstrates, a court who grants an interdict that prospectively allows an authority to evict people from their homes and demolish those homes unconstitutionally circumvents the requirements of section 26(3) of the Constitution and sabotages this section of the Constitution.

An interdict such as the one bandied about by SANRAL to justify their heartless action is therefore almost certainly unconstitutional.

In the judgment of Port Elizabeth Municipality v Various Occupiers the Constitutional Court displayed a far more humane and sensitive attitude towards human beings than either the judge who granted the SANRAL interdict or the spokesperson of SANRAL. Discussing the way in which PIE had to be interpreted and applied, Sachs J stated:

PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and promote the constitutional vision of a caring society based on good neighbourliness and shared concern.

The fact that SANRAL and the SAPS displayed a complete lack of grace and compassion in this case, underscores the need for court involvement in any decision to evict people from their homes.

This is important because a court that considers whether to evict people from their homes in accordance with section 26(3) of the Constitution, read with the provisions of PIE, will have to ask many questions that neither the court who issued the interdict nor SANRAL ever asked.

Section 6 of PIE states whenever an organ of state like SANRAL requests a court to grant an order for eviction the court can only do so if it is just and equitable to do so, having regard to the circumstances under which the unlawful occupier occupied the land and erected the building or structure; the period the unlawful occupier and his or her family have resided on the land in question; and the availability to the unlawful occupier of suitable alternative accommodation or land.

In City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties the Constitutional Court said that when considering whether an eviction would be just and equitable, a court must also consider the obligations of the municipality in a case. Even where a third party requests an eviction order a municipality must act reasonably in the circumstances.

In terms of Chapter 12 of the National Housing Code requires authorities like Municipalities to provide housing assistance in emergency housing circumstances. This means that the Municipality has a duty to provide assistance to people who find themselves in a housing emergency for reasons beyond their control. Where they are evicted – legally or illegally – people will find themselves in a housing emergency.

As the Constitutional Court explained in Blue Moonlight Properties a municipality cannot argue that in terms of Chapter 12 it is neither permitted nor obliged to take measures to provide emergency accommodation to those evicted. On the contrary “[t]he City is obliged to provide temporary accommodation”.

Claims by Premier Helen Zille on Twitter to the contrary are therefore false. As soon as the eviction occurred, the City of Cape Town had a duty to assist those evicted by SANRAL.

What remains incomprehensible is that many cities across South Africa still view homeless people who are forced unlawfully to occupy land because they have nowhere else to go as law-breakers – as if homeless people are not human beings imbued with incomparable human dignity.

What is needed is a complete paradigm shift on the part of authorities in South Africa. Millions of South Africans still do not have access to formal housing. Like everyone else, those who have no access to formal housing need shelter from the cold and rain. If they do not have the resources to buy or rent property they must be accommodated, and it is the state that has a responsibility to do so.

But many municipalities and provincial governments as well as the national government seem reluctant to deal pro-actively with those in desperate need of shelter. Instead of devising and implementing drastic and far-sighted policies to accommodate those in need of shelter, authorities often seem to treat the homeless as a nuisance to be combatted.

In the absence of such far-sighted policies to provide those in desperate need with access to forms of housing, many people will be forced to occupy both state and private land unlawfully. When they do, authorities often break the law by evicting the occupiers without obtaining the constitutionally required eviction orders and without providing alternative accommodation.

The result is that the authorities (in both DA and ANC municipalities) are often at war with poor people, the very people they claim to revere during elections. It’s a vicious circle: authorities fail to prioritise the needs of poor people and then rhetorically criminalise people for being poor by blaming them for having the cheek to do what is necessary to survive.

When authorities use the law as an excuse for their war on the poor – as Vusi Mona did this week – they undermine the legitimacy of the law. After all, where the law makes it impossible for poor people to survive with even a semblance of dignity, the law is an ass.

  • 1Zoo1

    At the heart of this lies a real failure to accept or comprehend property.

    People moved onto SANRAL’s land.

    It is owned by SANRAL (could be anybody of course).

    They stay there.

    They have no permission and their occupation is unlawful.

    If they stay there forever it would be theft of property.

    Then the owner takes legal action to protect its property, as it is legally entitled to do.

    Now the owner is the bad guy for simply exercising its rights and keeping its property.

    Why has not one person asked where these people came from? Its a hard nettle which needs to be grasped. They invaded illegally. They had homes previously. Sure, they have moved from somewhere to the land in search of a better life. That is a normal thing to do. But when taking a risk, you must be prepared for the consequences.

    Why are poor people spared the consequences of their actions? At what level of income can you do what you like, take what belongs to others, and take no responsibility for it?

    Eviction notices were served (I assume). They took no notice and are now surprised?! They should have moved off the land and made a plan. If it meant going back to their origins to save up and try again then that is what it means.

    Remember, if you destroy private property you destroy anybody’s means of moving out of poverty. People’s property must be protected from those who would take it illegally or wealth-creation is impossible.

    Just look at any communist country for an example.

    If someone took your car illegally and said “I have a right to transport and I can’t afford my own car” would you:

    1. leave the car with her, take the bus and demand the municipality provide her with another car so you can have yours back;

    2. give her the car in solidarity with her plight and take the bus; or

    3. charge her with theft and make sure she gets prosecuted?

    Almost everyone wringing their hands will go for 3. Why is land different?

    Why does the level of income determine different standards of responsibility for one’s actions?

  • Pierre de Vos

    You seem to be unaware that there are different conceptions of property (also in legal doctrine). You espouse one conception of property, but the Con Court has rejected that essentially private law idea of property and said property must be viewed through the lens of public law.

  • 1Zoo1

    Which is why this is such a troubled area.

    The ConCourt was wrong when dealing with the concept of land. its decision in the Mining case is clear that it doesn’t comprehend what ownership is.

    We are going to have massive problems because this is now a grey area.

    It is seriously deleterous of economic growth.

    Unfortunately, making “feel-good” judgments is short-sighted. These victories are phyrric victories for the poor.

    I can just imagine the look on the poor person’s face when he loses his property because “it has to be seen through the lens of public law”.

    Back to the camp for that entrepreneur.

    You just cannot have it both ways.

  • 1Zoo1

    Prof

    Whilst we know the ConCourt is the final word, it can at a later date change its word if it were previously incorrect.

    Where you begin to determine people’s rights on the basis of their economic standing you run a serious risk of creating differing rights for differing persons.

    That way lies legal chaos and is an avenue to be avoided at all costs.

    Whilst most of our rights can be limited, deciding who has “more right” to something based on economic levels is arbitrary to me.

    Thanks for the reply though – typed my last in rush before a meeting.

    BTW I have extensive evictions experience, mostly from a building control perspective. What everyone wanted, especially the evictees, was certainty as to where they stood in terms of the law.

    That is why I say this “public law” approach is a dangerous game, providing cheap, feel good victories with a serious long-term cost.

    I no longer do the eviction stuff and am in construction now. But I saw a whole of stuff which you should see.

    Its often not nice, and life is not cut the way the ConCourt Ivory Tower believes it is. You’d be surprised at how much money is milked from squatters by fellow squatters – nobody is not paying rent. Nobody.

  • Ta_andy

    I’m curious to find out if you would by any chance be prepared to swop places with these evicted people? go through what they experience on a daily basis.

  • 1Zoo1

    So you make laws based on subjective experience then?

    How do you like your chaos in the morning?

  • Ta_andy

    you didn’t answer my question, for example those people do not even have a computer like me and you that will enable them to put their side of the story as to the circumstances that led them to be where they are. laws cannot be blind to peoples circumstances.
    I quote Mr Vos “where the law makes it impossible for poor people to survive with even a semblance of dignity, the law is an ass”

  • 1Zoo1

    They are afforded the opportunity at court. Courts bend over backwards to make sure they get their version heard. Where they are unrepresented Courts sit up and take notice and give them as much benefit of the doubt as possible.

    That has always been the case and is nothing new BTW.

    The problem is you commentary on laws expecting laws to be used for social justice. Nobody, not even the Professor, can satisfactorily define social justice in a manner which accords with the demand of a society to be stable.

    Judgments are there to tell us what the law says and give us certainty about our lives. Judgments cannot be used as a substitute for economic growth and quality education – the only 2 means we have available of reducing the incidence of poverty.

    Private property is THE cornerstone of economic growth. It has to be protected at all costs. If you want social justice, you have to have strong private property rights – it is indivisible.

    Economies which have destroyed private property have failed, each and every time.

    These failures have cost dozens of millions of human lives too.

    You simply cannot protect people and punish others based on economic standing.
    That process demands a means test to determine who gets what type of
    justice.

    Don’t take the law where angels fear to tread.